Letter regarding the Commissioner's initial analysis on the privacy implications on Bill C-10

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The Privacy Commissioner of Canada, Jennifer Stoddart, sent the following letter to the Standing Committee on Justice and Human Rights, regarding her initial analysis on the privacy implications of Bill C-10, the Safe Streets and Communities Act.

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Hon. Dave MacKenzie, M.P.
Chair
Standing Committee on Justice and Human Rights
Sixth Floor, 131 Queen Street
House of Commons
Ottawa, Ontario K1A 0A6

Dear Mr. MacKenzie:

I am writing to provide the members of the Standing Committee on Justice and Human Rights with our views on some of the privacy implications stemming from Bill C-10, the Safe Streets and Communities Act. In support of the deliberations of Parliament, I am often called upon to comment on legislation that will result in new or expanded forms of personal information being collected by federal government institutions.^{Footnote 1} While clearly acknowledging the valid objectives of the amendments proposed, I wish to highlight the cumulative effect that some of the legal changes could have on privacy rights for many Canadians. We offer below for your consideration what we view as some of the more significant privacy issues raised in three parts of Bill C-10, and provide some suggestions as to how these issues might be addressed.

Part 4 - Youth Criminal Justice Act amendments

Part 4 of Bill C-10 raises two main potential privacy issues: (i) changes to procedures on publication bans and (ii) additional record-keeping requirements set out in the Youth Criminal Justice Act (YCJA).

i) Changes to publication ban procedures

Part 4 of Bill C-10 aims in part to facilitate the publication of the names of young offenders convicted of a broader range of “violent offences”, including offences that endanger the life or safety of another person “by creating a substantial likelihood of causing bodily harm”. Specifically, the amendments aim to broaden the circumstances, lower the age, and increase the frequency by which the name of a young offender is released to the public; and impose an obligation on the courts to consider whether to lift a publication ban in every case involving the more broadly defined “violent offence”. One of the most immediate and obvious purposes served by publishing the names of young offenders is to promote public denunciation.^{Footnote 2}

In our view, the shifting focus to “denunciation” under the YCJA constitutes a significant departure from the spirit of the Act. This specific change would mark a shift from long standing international, legal, and privacy principles that acknowledge that it is important to have a youth justice system that encompasses different principles and processes from those applicable to adults.^{Footnote 3} Furthermore, these amendments significantly impact protections that have traditionally existed for youth, particularly in relation to privacy.^{Footnote 4} Academics and the judiciary have argued clearly that the publication of the names of youth does little to protect the public in the short term and could seriously limit a youth’s reintegration into society. In the longer term, this would not seem to serve the interests of community safety.^{Footnote 5}

Our Office has strongly stated that changes to legislation, policy and programs that leverage the collection, use or disclosure of personal information to further the broad objectives of public safety should be accompanied by a privacy analysis that includes an assessment of the specific necessity, effectiveness and proportionality of the measures proposed, as well as consideration of less-invasive alternatives.^{Footnote 6} From a privacy perspective, these amendments represent an expansion of the circumstances under which youth as young as 12 years of age can be identified, denounced, shamed and stigmatized by the public. Proponents of the bill should demonstrate precisely how the resulting loss of privacy is likely to advance public safety in the longer term. In our view, Parliament should consider limiting the lifting of a publication ban to only those circumstances where the public interest clearly outweighs the loss of privacy in any given set of circumstances, and where the publication of the name of the youth would be demonstrably effective in meeting the goal of public safety.

ii) Record keeping requirements for extrajudicial measures

Part 4 of Bill C-10 would also introduce a new obligation for police to maintain records on extrajudicial measures, and would enable such records to influence sentencing by demonstrating perceived patterns of escalating frequency or severity of criminal behaviour. These amendments ultimately limit police discretion and have the potential to significantly increase the amount of personal information collected, retained, and potentially shared by police on youth who are not formally charged with an offence.

The focus of the YCJA has been on meaningful consequences for the most violent and habitualoffenders.^{Footnote 7} Under the current principles of the YCJA, the police are encouraged to exercise discretion to keep youth out of the courts by using the extrajudicial measures provided under the YCJA. Given that extrajudicial measures are premised on the idea of diverting youth from the mainstream adult justice system, requiring that police maintain records of all cases where youth are referred for extrajudicial measures would seem to defeat that original purpose.

Given the potential consequences for individuals listed in police record systems, we question whether it is appropriate to move from a record system where police officers retain some latitude and discretion to one where electronic files are generated automatically. This strikes us as being invasive, with little ultimate benefit. Parliament should strongly consider allowing police continued discretion in retaining investigative records related to extrajudicial measures. As well, Bill C-10, or any related regulations, should set out controls and limits on the collection, use, disclosure and retention of such records to appropriate and necessary circumstances.

Part 3 - Corrections and Conditional Release Act amendments

This part of the Bill raises three particular privacy issues: (i) the release of expanded offender information to victims; (ii) new provisions for the electronic monitoring of offenders; and (iii) new powers to search vehicles on penitentiary property.

i. Information for Victims

Certain amendments proposed under Part 3 of Bill C-10 would expand the type of information that could be provided to victims of crime under the Corrections and Conditional Release Act (“CCRA”) following a determination by the Commissioner of Corrections that the interests of the victim clearly outweigh any invasion of the offender’s privacy that could result from the disclosure.

We would like to stress the importance of an appropriate balance between the rights of the victim and those of the offender. The victims’ access to certain information can be seen as essential for ensuring that balance. However, information regarding disciplinary matters, the personal reasons for a planned temporary release, and participation in certain programs could provide victims with potentially sensitive personal information about the offender that is not directly related to the victim or the offence committed. For example, an offender could be convicted of break and enter, but taking programs related to a drug addiction; or the reason for a temporary absence could be related to visiting a family member or loved one.

We would urge Parliament to consider submitting the exercise of the Commissioner of Corrections discretionary powers in this regard to proper oversight.

ii. Electronic Monitoring

Bill C-10 also proposes to amend the CCRA to allow Correctional Services Canada to demand that an offender wear a monitoring device in order to monitor their compliance with conditions established in their temporary access, work release, parole, statutory release or long-term supervision that restricts access to a person or geographical location. While we understand that such technology is intended to monitor conditions of release in the community that relate to restrictions on location, the capability exists to actively monitor the real-time movements of offenders rather than the conditions that exclude them from certain locations or require that they remain within certain parameters. Moreover, this information is retained and available to law enforcement.Parliamentarians should consider the merits of allowing this program to continue under a voluntary, consent basis, as privacy concerns arise whenever an intrusive enforcement model shifts to a compulsory requirement. Parliament should also bear in mind that the effectiveness of electronic monitoring systems is far from established.

iii. Exceptional power to search

Section 61 of the CCRA as currently drafted allows an employee of Correctional Services Canada, in prescribed manners and circumstances, to conduct routine searches of vehicles at a penitentiary when there are reasonable grounds to believe that a vehicle contains contraband and circumstances are limited to what is reasonably required for security purposes. A proposed amendment under Bill C-10 widens the grounds for such a search to include situations in which there are reasonable grounds to believe “ a clear and substantial danger to the security of the penitentiary or the life or security of persons” exists or that any criminal offence is being planned or has been committed.

The CCRA currently contains a requirement that warnings be posted at penitentiaries stating that all visitors and vehicles at the penitentiary are subject to being searched.The posted notification would simply advise visitors that they are subject to searches in accordance with Section 61 and regulations.Such notifications should be updated to include information about these expanded grounds for search, and Parliament could consider enacting regulations governing such expanded searches, including clarifying the frequency with which they may occur, the manner in which they may be carried out, the circumstances in which they can be carried out, and which staff members may or may not carry them out.

Part 2 - Criminal Code sentencing

We would note potential privacy implications arising from Part 2 of Bill C-10 as new offences would trigger wider collection, use or disclosure of personal information. Some examples include expanding the situations in which the interception of communication is permissible, or when offenders may be subject to DNA sample orders or when individuals are included on the sex offender registry.

We would also flag possible privacy implications under new prohibition orders or recognizance conditions concerning contact with a person under the age of 16 and use of the Internet or other digital network. How precisely and closely these activities are actively monitored, for example, could entail considerable amounts of personal information. Furthermore, by expanding the list of offences eligible for these conditions or prohibitions, there may be more people affected by these measures.

Finally, we welcome the addition of more offences to the provisions whereby a judge must justify his or her decision not to grant a public exclusion ban. This increases the privacy protections available for the victim, and also the accused. Moreover, adding more offences for which a publication ban order can be made increases the privacy protections available for the victims and/or witnesses. Overall, this is a positive development for individual privacy within an extremely sensitive set of circumstances.

In summary, we would urge Parliamentarians to consider Bill C-10 carefully in light of the potential privacy implications noted above. Given the public interest in this issue, we anticipate posting this letter on our website in the near future. I would like to thank you for your attention to this critical issue.

Sincerely,

c.c.: Hon. Vic Toews, P.C., Q.C., M.P.
Hon. Robert Nicholson, P.C., Q.C., M.P
Jean-Francois Pagé, Clerk (JUST)